Ontario Court Rules Videotape Surveillance Footage Does Not Constitute Collection of Personal Information Under PIPEDA

The Ontario Superior Court of Justice has ruled that the use of videotape surveillance evidence recorded by a private investigator does not constitute the collection of personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA). The plaintiff, Denise Ferenczy, sued the defendant, Dr. Gary Weinstein, for professional negligence, claiming that her left hand had been disabled as a result of his medical services. In order to impeach the plaintiff's testimony, the defendant tendered a videotape surveillance clip of the plaintiff continuously holding a coffee cup in her left hand. The plaintiff argued against the admission because it represented the collection of her personal information in the course of a commercial activity in contravention of PIPEDA. The Court disagreed and ruled that the evidence would be used for the limited purpose of impeaching the plaintiff's testimony, and would not render the trial unfair. The Court made several key findings. First, the Court noted that there is no rule against provision admissibility into evidence of personal information collected or recorded in contravention of PIPEDA. Second, although the surveillance tape was a record of personal information collected without the consent of the plaintiff, the recording of it did not constitute a commercial activity. The defendant was collecting information for a personal purpose, as opposed to a commercial purpose, to defend himself against a lawsuit brought by the plaintiff. Since the recording occurred in a public place, the Court found that the plaintiff had given her implied consent to the defendant to collect, record, and use her personal information insofar as it related to defending himself against her lawsuit. Further, the Court found that the collection of the plaintiff's personal information without consent was justified under section 7 of PIPEDA, which permits the collection of personal information without consent to prevent the information from being compromised in the context of an investigation and for disclosure at trial. For a copy of the reasons for judgment (Ferenczy v MCI Medical Clinics), see: http://www.canlii.org/on/cas/onsc/2004/2004onsc11110.html Summary by: Colin Adams